Motion For New Trial Denied In Murder Plot Case

MIDDLETOWN — Judge Patrick J. Clifford's remarks about his real estate agent wife and basketball star Ray Allen's interest in a pricey shoreline house she once listed shouldn't affect the conviction of Ernest Garlington for an attempted hit against Allen's stepfather, a judge ruled Tuesday.

Superior Court Judge Robert L. Holzberg denied Garlington's motion for a new trial and his move to disqualify Clifford, who made the off-the-cuff remarks to Garlington's lawyer at the time, and to a prospective juror who happened to be a real estate agent.

Clifford said his wife "better start shaking the money tree" and referred to having to pay for his daughter's upcoming wedding. He mentioned that Allen, a former UConn great who plays for the Boston Celtics, had looked at a house that his wife later listed. The comments, deemed by Holzberg to be "lighthearted, humorous banter - perhaps ill-advised," were made before the evidence portion of the trial began, and were recorded on the tape that runs while court is in session.

Holzberg ruled that the remarks had no bearing on Clifford's impartiality and conduct at trial, and that Clifford would remain on the case and preside over the sentencing. No date had been scheduled as of Tuesday afternoon. Garlington, 39, faces up to 65 years in prison.

His lawyer, Jeffrey A. Denner of Boston, had argued that it was improper for Clifford to have interjected his own financial situation into the case. Denner said Tuesday that he will appeal and move to postpone any sentencing hearing.

Garlington, a minister, counselor and self-help author, was convicted last November of conspiring to assault Derek Hopson in August 2002 and conspiring to have him killed in a May 2003 shooting outside a Middletown mental health clinic where Hopson worked as a psychologist.

Hopson is married to Allen's mother, Flora Allen-Hopson. He is the ex-husband of Garlington's wife, Darlene Powell-Garlington. At the time of the attempted shooting, Hopson and Powell-Garlington were going through a contentious divorce.

Robbie Santos, 35, of Waterbury, is serving an 18-year prison term for shooting at Hopson. The bullet from Santos' gun missed

Garlington's former lawyer, criminal defense attorney William F. Dow III, engaged in the conversation with Clifford and did not raise an objection to the judge's remarks. During the jury selection process, Dow dismissed the prospective juror who had chatted with the judge, and she never served on the case. Holzberg ruled that Dow's decision not to object amounted to a legal waiver of the claim of judicial impropriety.

Denner, hired after Garlington fired Dow, said he has great respect for Clifford and Dow, but that the judge was wrong to make the comments, and Dow was wrong not to object.

In opposing Denner's motions for a new trial, prosecutor Russell C. Zentner noted that Susan Clifford was given the sale contract on a multimillion-dollar house in Madison about two years after Allen had looked at the house. Zentner, a senior assistant state's attorney, said Susan Clifford's listing agreement stated that she would not collect a fee if an offer came from any of the four people who had previously viewed the house, including Allen.

Susan Clifford never met or spoke with Allen during the time she listed the house, and her contract expired months before the trial began, according to sworn affidavits presented by Zentner.

Holzberg, in his 28-page decision, said his finding was buttressed by a review of the three cases in which the state Supreme Court ruled a judge should be disqualified. These were instances, Holzberg said, in which the judges' conduct had the potential to undermine their ability to be fair and impartial at trial.

That was far from the case with Clifford, Holzberg ruled, adding that any conjecture that Allen might somehow reward the judge's wife if he was pleased with the trial's outcome "was built on unverified assumptions resting on untested hypotheticals."